Disrupting Consensus in Parliamentary Committees? Minority Reports and a Taxonomy for Classifying Them
←
→
Page content transcription
If your browser does not render page correctly, please read the page content below
Disrupting Consensus in Parliamentary Committees?
Minority Reports and a Taxonomy for Classifying Them*
John Aliferis and Anita Mackay
Independent researcher.
Senior Lecturer, La Trobe Law School, La Trobe University.
* Double-blind reviewed article.
Abstract Westminster parliamentary committees have traditionally valued
consensus. When a minority report is tabled, this is a form of dissent that
disrupts such consensus. This article examines the role of minority reports
generated by joint investigatory committees of the Parliament of Victoria
over three parliamentary terms to gain an understanding of the objectives
that minority reports perform. These objectives can be better understood
using an original taxonomy that classifies minority reports as having four
distinct objectives. The taxonomy may be applied in other comparable
jurisdictions, and this article will demonstrate the way classification
facilitates appropriate responses to the various kinds of minority reports.
INTRODUCTION
The growth of parliamentary committees has been recognised as ‘arguably the most
important institutional development in modern Westminster-style parliaments’.1
Their influence and reach has been underpinned by their reputation, which is due in
part to their ability to undertake ‘detailed investigations of matters and [to] encourage
debate about public policy’.2 In recent years, the role of parliamentary committees has
1
John Halligan and Richard Reid, ‘Conflict and Consensus in Committees of the Australian Parliament’. Parliamentary
Affairs 69(2) 2016, pp. 230-248, p. 230.
2
Halligan and Reid, ‘Conflict and Consensus’, p. 230.62
been a focus for researchers in common law jurisdictions, including the United
Kingdom and Australia, with this research centred on their role and performance in
national Parliaments.3 There has been no similar research into the role of conflict and
dissent in Victorian parliamentary committees.4 This article seeks to address this gap
by examining joint investigatory committees (JICs) from the Australian state of Victoria,
and drawing lessons from the experience in Victoria that may be applied in comparable
jurisdictions.5 JICs have been selected because they form part of what Moulds terms a
‘sophisticated system of committees’, rather than operating on an ‘ad hoc basis’.6
The first part of this article provides an overview of the notion that consensus is central
to the operation of parliamentary committees. It then provides some background to
the operation of JICs and the way that dissent is possible within this committee system,
with the primary mechanism of dissent being minority reports. The authors’
contention is that dissent is an important element for the operation of parliamentary
3
Philip Norton, ‘Departmental Select Committees: The Reform of the Century?’. Parliamentary Affairs 72(4) 2019,
pp. 727-741; Halligan and Reid, ‘Conflict and Consensus’, p. 230; Laura Grenfell and Sarah Moulds, ‘The Role of
Committees in Rights Protection in Federal and State Parliaments in Australia’. University of New South Wales Law
Journal 41(1) 2018, pp. 40-79; Laura Grenfell, ‘Parliament’s Reputation as the ‘Pre-Eminent’ Institution for
Defending Rights: Do Parliamentary Committees Always Enhance this Reputation?’. Australasian Parliamentary
Review 31(2) 2016, pp. 34-45; Hannah White, Select Committees under Scrutiny: The Impact of Parliamentary
Committee Inquiries on Government. London: Institute for Government, 2015. Accessed at:
https://www.instituteforgovernment.org.uk/sites/default/files/publications/Under%20scrutiny%20final.pdf; Paul
Yowell, Hayley Hooper and Murray Hunt, Parliaments and Human Rights: Redressing the Democratic Deficit. London:
Bloomsbury Publishing, 2015, p. 141; Ian Marsh and Darren Halpin, ‘Parliamentary Committees and Inquiries’, in
Brian Head and Kate Crowley (eds.), Policy Analysis in Australia. Bristol, The Policy Press, 2015, pp. 137-150; David
Monk, ‘A Framework for Evaluating the Performance of Committees in Westminster Parliaments’. The Journal of
Legal Studies 16(1) 2010, pp. 1-13; Sarah Moulds, Committees of Influence. Parliamentary Rights Scrutiny and
Counter-Terrorism Lawmaking in Australia. Cham: Springer, 2020.
4
For a discussion of the role of cohesion in committees in Sweden, Iceland and Scotland, see David Arter,
‘Committee Cohesion and the ‘Corporate Dimension’ of Parliamentary Committees: A Comparative Analysis’. The
Journal of Legislative Studies 9(4) 2003, pp. 73-87.
5
Our research has excluded two JICs that focus on regular oversight, scrutiny and review. These are the Public
Accounts and Estimates and Scrutiny of Acts and Regulations (SARC) JICs. For a detailed discussion of the impact of
the SARC, see Sharon Mo ‘Parliamentary Deliberation in the Operation of the Victorian Human Rights Charter’, in
Julie Debeljak and Laura Grenfell (eds.), Law Making and Human Rights: Executive and Parliamentary Scrutiny Across
Australian Jurisdictions. Sydney: Lawbook Co., 2020.
6
Sarah Moulds ‘Scrutinising COVID-19 Laws: An Early Glimpse into the Scrutiny Work of Federal Parliamentary
Committees’. Alternative Law Journal 45(3) 2020, pp. 180-187, p182. Moulds refers to the role of scrutiny
committees in protecting rights.
AUSTRALASIAN PARLIAMENTARY REVIEW63
committees and, by extension, of parliamentary democracy. How important or useful
this is depends on the nature and volume of the dissent.
The second part of the article analyses minority reports by JICs in Victoria over three
parliamentary terms (2006 – 2018) to develop a way of categorising them. Four
categories are identified, each with distinct objectives: (1) contributing to policy
debate, (2) overt political objectives, (3) claims of committee malpractice, and (4)
drawing attention to issues of evidence in the committee report. Examples of each
category are provided.
The article concludes with a discussion of the value of categorising minority reports in
this way, arguing that it enables different responses to the different types of reports.
This provides a basis for understanding the important role that dissent can play in the
operation of parliamentary committees when the dissent is properly understood.
THE CONSENSUS NORM AND DISSENT BY MEMBERS OF JOINT INVESTIGATORY
COMMITTEES
Parliamentary committees are recognised as ‘important deliberative spaces where
policy problems are identified and framed’ and in ‘mediating policy knowledge’.7 This
characterisation of committees fits within a broader description of them as ‘a smaller
group from the parent assembly undertaking much of the creative, cooperative work
of legislature’.8 Committees can be seen as representing a ‘well-functioning
deliberative system, [with] ideas and arguments flow[ing] from various public spaces
to inform the more formal (decision-making) spaces’, foremost the executive branch.9
Members of Parliament in many systems spend a significant proportion of their time
conducting committee business.10 In their capacity as a sub-set of the Parliament,
committees have the capacity to undertake deeper and more expansive investigations
7
Caroline M. Hendriks and Adrian Kay, ‘From ‘Opening Up’ to Democratic Renewal: Deepening Public Engagement
in Legislative Committees’. Government and Opposition 54(1) 2019, pp. 28-29.
8
Hendricks and Kay, ‘From ‘Opening Up’ to Democratic Renewal’, p. 28; Dominique Della-Pozza, ‘Promoting
Deliberative Debate? The Submissions and Oral Evidence Provided to the Australian Parliamentary Committees in
the Creation of Counter-Terrorism Laws’. Australasian Parliamentary Review 23(1) 2008, pp. 39-61.
9
Dryzek, as cited in Hendricks and Kay, ‘From ‘Opening Up’ to Democratic Renewal’, p. 28.
10
Marsh and Halpin, ‘Parliamentary Committees and Inquiries’, p. 137.
VOL 36 NO 1 AUTUMN/WINTER 202164
into issues, legislation and policy challenges than the Parliament as a whole. As a
consequence, both due to their nature and operating environment, they are
‘theoretically likely to display stronger deliberative virtues, such as listening and
reflection, then larger open plenary sessions’.11 The extent to which parliamentarians
are likely to reflect such ‘deliberative virtues’ in a committee setting depends on
jurisdictional political culture. It also depends on whether committee work is
undertaken in public or in private (private settings are more conducive to deliberation),
and the nature of what is being investigated (more politically sensitive matters are less
likely to lead to deliberation).12 If such deliberation by parliamentary committees is
accepted to be positive and integral to the smoother functioning of committee inquiry
work and outcomes, it is also a pre-requisite to consensus building in committees.
In practice, a trend towards consensus has been a key characteristic of parliamentary
committees. This is reflected in the proportion of unanimous committee reports.
There are several possible reasons for this. The first is that the inquiry process itself
(evidence gathering, investigating, deliberating, and recommending) likely offers space
and opportunity to negotiate and form consensus. This process, described as being a
‘positive-sum outcome’13 occurs because committees work closely and for long periods
of time, with Members learning and deliberating as they go, fostering a collegial culture
conducive to consensus. The second is that unanimous reports from parliamentary
committees are viewed by committee members as carrying more weight,14 in part
because recommendations are seen to be more likely to be implemented by
government if there is an absence of dissent. Even where recommendations are not
immediately implemented, unanimity and bipartisanship are seen to result in inquiry
work that will be impactful in the longer term. Lastly, the work of committees may be
seen as an opportunity for deep engagement with an inquiry topic which may reduce
11
Joseph M. Bessette et al., as cited in Hendricks and Kay, ‘From ‘Opening Up’ to Democratic Renewal: Deepening
Public Engagement in Legislative Committees’, p. 28.
12
André Bächtiger et al., as cited in Hendricks and Kay, ‘From ‘Opening Up’ to Democratic Renewal: Deepening
Public Engagement in Legislative Committees’, pp. 28-29.
13
Giovanni Sartori, as cited in Halligan and Reid, ‘Conflict and Consensus’, p. 232.
14
Giovanni Sartori, as cited in Halligan and Reid, ‘Conflict and Consensus’, p. 229; John Halligan, Robin Miller and
John Power, Parliament in the Twenty-first Century: Institutional Reform and Emerging Roles. Carlton: Melbourne
University Press, 2007, p. 229.
AUSTRALASIAN PARLIAMENTARY REVIEW65
the overriding focus on overt political matters and ideological disagreement that are a
feature of party politics in a Westminster Parliament.
Victorian joint investigatory committees
The tendency towards consensus is empirically borne out in JICs in Victoria. JICs are
established at the commencement of each four-year term of Parliament. They
generally have a total of seven Members, who are drawn from both the Victorian
Legislative Assembly and the Legislative Council and are comprised of members of
various political parties. The Parliamentary Committees Act 2003 (Vic) (the Act) and
parliamentary Standing Orders set out the subject area responsibility of each
committee, its procedures and powers.15
Generally, JICs have shown a clear preference for bi-partisan and multi-partisan
consensus in undertaking their inquiries and in developing and adopting findings and
recommendations. Indeed, committee consensus is the most likely outcome for a JIC
in Victoria. That conclusion is based on an analysis of the period between 2006 and
2018, which covers three parliamentary terms (the 56th Parliament [2006-2010], the
57th Parliament [2010-2014] and the 58th Parliament [2014-2018]). Two different
political parties were in government during this time (Labor from 2006 to 2010 and
2014 to 2018, and the Coalition from 2010 to 2014). As set out in Table 1, unanimous
reports were the norm despite:
• membership turnover on committees
• changes to the composition and number of committees
• changes to the areas of committee operation
• changes of government and Premiers, and
• the nature and scope of inquiries, including inquiries which may have been
suited to other forms of investigation, such as Royal Commissions16.
15 See, e.g., Victorian Legislative Assembly, Standing Orders (Committees), January 2020, [221]. Accessed at:
www.parliament.vic.gov.au/assembly/standing-aamps-sessional-ordersrules/standing-orders/2-legislative-
assembly/articles/766-chapter-24-committees#so221.
16
Such as Family and Community Development Committee, Betrayal of Trust. Inquiry into the Handling of Child
Abuse by Religious and Other Non-Government Organisations. Parliament of Victoria. Tabled 13 November 2013.
VOL 36 NO 1 AUTUMN/WINTER 202166
Table 1. Victorian Joint Committee Inquiry reports 2006-2018
Number of reports Total minority Minority reports
Parliament tabled reports as a percentage
2006-10 48 12 25%
2010-14 35 7 20%
2014-18 31 5 16%
The trend apparent in Table 1 is relatively consistent, revealing a reduction in minority
reports in the 2006-2018 period. Other noteworthy findings were that minority reports
were almost always tabled by non-government (Opposition) committee members. Law
reform, electoral matters and environment related committees were most likely to
include minority reports. Twenty of the 24 minority reports included as an author
either the chair17 or deputy chair of the committee.18 Most minority reports were
supported by three or more committee members.
Mechanisms of dissent in joint investigatory committees
Dissent in committees when it occurs, arises in two ways: in votes arising during
committee deliberation and adoption of the final reports (which are recorded as
divisions) and/or in minority reports appended to the final reports. The latter are the
focus of this article, but a brief overview of deliberations is also provided.
First it is important to outline the reasons that dissent occurs. The membership of
committees, derived from the Act (amended at the beginning of each new Parliament),
carries with it a risk that the party in power will have a majority of Members in
committee. This occurs when the party that has won government has the numbers to
set the committee membership. This power is used to ensure that government
backbench Members can exercise control over the approach to an inquiry, the drafting
17
In the period 2006-2018 there was a single instance of a minority report written by a Chair.
18
Law Reform, Road and Community Safety, Inquiry into Lowering the Probationary Driving Age in Victoria to
Seventeen. Melbourne, Victoria, Parliament of Victoria, 2017. Accessed at: www.parliament.vic.gov.au/431-
lrrcsc/inquiry-into-lowering-the-probationary-driving-age-in-victoria-to-seventeen.
AUSTRALASIAN PARLIAMENTARY REVIEW67
and adoption of the report and the making of findings or recommendations. Ordinarily,
the power is used to appoint the chair of the committee, an important role given the
report is initially drafted in the chair’s capacity before being adopted by the rest of the
membership.19 Thus, the power to appoint the membership of a JIC can lead to political
advantage—the likelihood of being able to control an inquiry’s outcomes. This power
to appoint operates alongside the otherwise independent, bipartisan approach that
committees usually take, reflecting the fact that they are not an extension of the
executive but a subcommittee of the Parliament as a whole, tasked with reporting back
to it their findings and recommendations. In short, government majority control of a
JIC can result in majority control of each committee and its operations. Therefore,
there are at least theoretical risks involved in having government backbenchers form
the majority on a JIC. This is particularly so given that decisions of a committee
regarding the formal drafting and adoption of reports (including recommendations and
findings) involve votes and divisions, in the same way as in both houses of Parliament.
This state of affairs effectively creates an incentive to dissent against the primary report
if non-government Members feel aggrieved. Dissent seems most likely to occur in
circumstances where the majority view aligns with the interests or the broad
policy/operational approach of the government or its bureaucracy. The submission of
a minority report can be seen as a check on the power of the executive.
Dissent expressed during committee deliberations
During the normal practice of the adoption of the report (formal and last approval of
the committee draft), where there is a lack of unanimous support, a committee can
divide and vote on the report’s recommendations. Theoretically, members can also
divide and vote on paragraphs and entire chapters. Formal adoption involves adopting
each and every component part of the report, including tables, contents pages,
chapters, findings, recommendations etc.). The exception to adoption is the chair’s
foreword which is not subject to vote—it is the exclusive prerogative of the chair. In
addition to the draft report, division and votes can also be taken on any new proposals,
alternative recommendations or findings or changes to existing findings and
19
Victorian Legislative Assembly, Standing Orders (Committees).
VOL 36 NO 1 AUTUMN/WINTER 202168
recommendations. These are usually circulated by sponsoring member of a committee
in advance, are tabled and then voted on by attending members.
Alternative recommendations and findings can conflict with those already contained in
the draft report and if defeated in the adoption meeting, can form the basis for a
minority report. The proposals, together with votes and divisions taken on them, are
published in the proceedings section located at the end of an inquiry’s report.
The proceedings section provides access to otherwise unknown information that helps
contextualise the matters that a committee discussed and debated, given that it
ultimately divided and voted on these. Thus, divisions and votes provide an insight into
the matters debated by a committee and provide a way to understand the differences
between members and political parties on findings and recommendations. In most
cases prior to the present parliamentary term, the divisions and votes during
deliberation and adoption favoured the committee majority.
Dissent expressed via minority reports
Given the effect on JIC investigations and inquiries of a majority of government
members exercising control over a committee, the Act explicitly provides a power to
dissent using a minority report. At the conclusion of the deliberation and adoption
phase, a member, or group of members may write and have published an additional
report.20 This power is found in section 34(2) of the Act.21
Minority reports must address the terms of reference. Theoretically, they could be
drafted as an alternative report in whole. However, they are usually structured as a
response that debates or criticises the findings and recommendations of the adopted
report, and sets out alternative findings and recommendations. In addition, they can
include views from public hearing participants or submissions which are seen to have
not been appropriately referenced in the main report. They can also address or raise
20
Minority reports are written outside of normal operations and are unsupported administratively, in terms of
research or management, by the JIC or its secretariat. Instead, this work is undertaken solely by the members of the
Committee who initiate the minority report.
The exact wording of the subsection is as follows: ‘A Joint Investigatory Committee must include with a report
21
made by it to the Parliament any minority report on behalf of a member of the Committee if so requested by the
member’.
AUSTRALASIAN PARLIAMENTARY REVIEW69
failures by the committee to give appropriate weighting to a view expressed by
stakeholders, or can question the very basis for the inquiry in the first place.
The key reason that minority reports are written is to criticise the report adopted by
the majority. In that respect, they provide a conduit for dissent where members of a
committee are unable to alter the report’s findings or recommendations due to
insufficient numbers, even with the use of the division and vote process described
earlier. Minority reports therefore act as an institutional check, and a democratic
pressure release valve allowing alternative ideas and judgments to be published on an
inquiry topic, at the same time as the majority adopted report is being published. In
that way, the minority report is supportive of the broader democratic principles in the
Parliament, pluralising the voices and views that a report represents.
Response to minority reports
The question of whether the Government is required to respond to a minority report
is less clear than would be desirable. Section 36 of the Act requires that the
Government respond within six months from the tabling of a JIC report to any
recommendation made for government action. Specifically, subsection 36(1) states:
If a Joint Investigatory Committee's report to the Parliament recommends
that the Government take a particular action with respect to a matter,
within 6 months of the report being laid before both Houses of the
Parliament or being received by the clerks of both Houses of the
Parliament, the appropriate responsible Minister must provide the
Parliament with a response to the Committee's recommendations.
The section does not differentiate between a majority or a minority report. However,
given the construction of the section, and the reference to a minority report as
something included with a JIC’s report (per section 34(2)), the section does not appear
to place a requirement on government to respond to recommendations made in a
minority report. Our analysis of government responses to JIC reports failed to locate a
single response to a matter raised in a minority report.
While governments are required to respond only to the adopted report, the minority
report is not without influence and is capable of generating reactions from
government, the media and the public. A minority report may mitigate the power of a
committee majority, which could otherwise lead to action being taken on the findings
and recommendations of the report to an extent not justified by the evidence
presented to the inquiry. Without a minority report, it would be difficult to capture
VOL 36 NO 1 AUTUMN/WINTER 202170
alternative views and ideas, thus reducing the role and power of minority parties
represented on a JIC.
CATEGORISING MINORITY REPORTS
As was noted earlier, there has been extremely limited research of any kind on
Victorian JICs22 and almost none on minority reports by either JICs or other types of
committees. Indeed, one could view the current situation in Victoria as un-researched.
As a result of the limited focus on inquiry reports, minority reports are currently viewed
as a homogenous group. In analysing the minority reports made in JIC reports over the
period between 2006 and 2018, it is clear that a better way to assess and understand
them is to attempt to classify them. This is because dissenting views represented by
minority reports vary in focus: each has different drivers, imperatives and objectives.
That in turn is reflected in the structure, reasoning, issues, style, and language used in
minority reports.
A taxonomy is a way of coming to grips with this complexity. Defined by Simpson, a
taxonomy is ‘the theoretical study of classification, including its bases, principles,
procedures and rules’.23 Taxonomies provide a scheme of classification with a
consistent set of characteristics or attributes which are used for identification
purposes.24 Once classified, it becomes a more manageable task to identify trends in
the type of dissent embodied in minority reports, the extent of friction within JICs, and
the nature of this friction. Given the operation of the consensus norm and the idea
that reports are seen to have more impact if they have unanimous support,25 there is
22
One example of a detailed analysis of the operation of a JIC can be found in Nathaniel Reader, ‘Assessing the
Policy Impact of Australia's Parliamentary Electoral Matters Committees: A Case Study of the Victorian Electoral
Matters Committee and the Introduction of Direct Electoral Enrolment’. Parliamentary Affairs 68(3) 2015, pp. 494-
513.
23
Kenneth Bailey, Typologies and Taxonomies: An Introduction to Classification Techniques. Thousand Oaks: SAGE,
1994, p. 5.
24
The process of classification is ‘defined as the ordering of entities into groups or classes on the basis of their
similarity’: Bailey ‘Typologies and Taxonomies’, p. 2.
25
Halligan and Reid, ‘Conflict and Consensus’; Joint Select Committee Working Arrangements of the Parliament,
Report No 14: Dissenting Statements, Hobart, Tasmania, Parliament of Tasmania, 2005. Accessed at:
www.parliament.tas.gov.au/ctee/Joint/REPORTS/Report%20No%2014%20Dissenting%20Statements.pdf; George
AUSTRALASIAN PARLIAMENTARY REVIEW71 value in considering in some detail the reasons why such consensus is not always achieved. A Taxonomy for minority reports For the period from 2006 to 2018, 24 minority reports were analysed by the authors to identify common attributes or characteristics that allow such classification. Elements of structure, patterns of reasoning, use of evidence, typical language, and the focus of each report were considered. These elements combine to represent a coherent, multi- dimensional taxonomy. At the top level, we consider that these reports fall into one of four categories. These are: 1. Policy focused The minority report focuses largely on the broader policy issue that the committee was established to address, offering a different interpretation to the final report. 2. Political The minority report takes issue with one or more of the party-political positions that divide the Parliament. 3. Malpractice/malfeasance The minority report alleges that some malpractice or malfeasance (administrative or otherwise) has occurred and is not adequately addressed in the final report. 4. Evidential The minority report draws attention to evidence ignored, inadequately addressed or otherwise given insufficient attention in the final report. These categories are subject to further division into four subcategories. Each category of report may be further analysed through attention to its: 1. Objective or Purpose Clarity, objectivity, disingenuousness. 2. Structure Stand-alone, commentary, questioning. 3. Language Formal, rhetorical, inflammatory. 4. Handling of evidence Detailed, well martialled, partial, biased. Williams and Daniel Reynolds, ‘The Operation and Impact of Australia's Parliamentary Scrutiny Regime for Human Rights’. Monash University Law Review 41(2) 2015, p. 479. VOL 36 NO 1 AUTUMN/WINTER 2021
72
These subcategories are in some respects matters of style but are important in judging
the minority report’s likely impact. Table 2 sets out these categories and subcategories
in a manner that demonstrates their relationships. The cells in the table contain text
that identifies the predominant characteristics of each category of report in each
subcategory.
In some cases, the category into which a minority report falls will be easily definable –
that is, it will fit clearly or easily within one or other category. In other cases, this will
not be clear. In this situation, a predominant purpose will need to be identified: that is,
an attempt will need to be made to determine what characteristics from the four
categories and sub-categories predominate. This is a question of assessing the report’s
characteristics on the basis of volume (accounting for which characteristics are most
represented).
Table 2. Taxonomy for Classifying Minority Reports
AUSTRALASIAN PARLIAMENTARY REVIEW73
Taxonomy for Classifying Minority Reports (continued)
Some cautions
There is always a subjective element to any social science taxonomy. Indeed, it has
been noted that ‘a classification is no better than the dimensions or variables on which
it is based’.26 In the case of minority reports, the authors recognise that there are
subjective elements at play. These include that assessing the characteristics involves
subjective analysis; that the characteristics may not be consistently applied, which may
impact empirical assessment; and the role of political objectives is likely at play in all
four categories. Additionally, there is also the possibility of there being other
unrecognised categories. Indeed, in a small number of instances, the mixture between
26
Bailey, ‘Typologies and Taxonomies’, p. 2.
VOL 36 NO 1 AUTUMN/WINTER 202174
different categories is such that a minority report could be considered a hybrid of two
different categories.27
Nevertheless, we consider that this taxonomy is a useful tool for understanding
minority reports and that it has strong heuristic value. As with other social science
taxonomies, its strength lies in providing a descriptive tool that allows for ‘side-by-side’
comparisons, ‘reducing complexity or achieving parsimony’, ‘identifying similarities
and differences’.28 It can be versatile, in that it may be used to understand minority
reports in other jurisdictions. The minority report taxonomy is the first to be created
for classifying minority reports, and should provide a basis for understanding their role,
dimensions and contribution in public policy debates and parliamentary practice and
outcomes.
THE TAXONOMY IN ACTION
Figure 1 provides an overview of the trends in the types of minority reports made by
JIC in the period 2006-2018. Appendix A provides a timeline of which committees
resulted in minority reports of each category.
Across the three parliamentary terms, most minority reports were policy focused.
Further, in each parliamentary term, the policy focused category consistently
comprised between 58% and 63% of the overall number of minority reports. The data
demonstrate that very few politically aimed minority reports were made - none in the
2010-14 period.
27
One example is the Road Safety Committee’s report on Pedestrian Safety in Carparks that has been categorised
as a malpractice/malfeasance minority report because the main argument in the minority report is that it was a
waste of Committee time and resources to conduct this inquiry when, in their view, there were more important
road safety considerations in Victoria. This minority report also contains elements of a political report because it
critiques the Government for instigating this inquiry at the particular time. Road Safety Committee, Inquiry into
Pedestrian Safety in Car Parks. Melbourne, Victoria, Parliament of Victoria, 2010, p. 126. Accessed at:
www.parliament.vic.gov.au/58-rsc/pedestrian-safety-in-car-parks. A second example is the Environment and
Natural Resources Committee inquiry into the approvals process for renewable energy projects in Victoria. This
minority report has been classified as predominantly a policy focused report, but it also contains elements of a
political report because it is critical of a governing party that is specifically named. Environment and Natural
Resources Committee, Inquiry into the Approvals Process for Renewable Energy Projects in Victoria. Melbourne,
Victoria, Parliament of Victoria, 2010, p. 287. Accessed at: www.parliament.vic.gov.au/enrc/inquiries/article/870.
28
Bailey ‘Typologies and Taxonomies’, pp. 10-11.
AUSTRALASIAN PARLIAMENTARY REVIEW75
Figure 1. Victorian Joint Investigatory Committee Minority Reports by taxonomic
type 2006-18
12
Political
10
Evidentiary
8
Malpractice
6
4
Policy
2
0
2006-10 2010-14 2014-18
The best way to gain an insight into the characteristics of minority reports falling into
each of the four categories is to consider an example from each category. Each case
study covers the characteristics outlined in the taxonomy above.
Policy focused category
The policy focused category of minority reports hones in on the policy issue covered by
the terms of reference of the inquiry, seeking to make different recommendations to
those contained in the main report (either related to those contained in the main
report, or additional). The minority report on the Law Reform Committee’s (LRC)
Inquiry into Alternative Dispute Resolution and Restorative Justice (2009) has been
categorised as a policy focused report using the taxonomy,29 and is a good illustration
Law Reform Committee, Inquiry into Alternative Dispute Resolution and Restorative Justice: Minority Report.
29
Melbourne: Parliament of Victoria, 2009.
VOL 36 NO 1 AUTUMN/WINTER 202176
of this category of minority report.30 The minority report highlights three
recommendations made by the majority in the main report (recommendation numbers
69, 70 and 71) and outlines the reasons why the minority do not support these
recommendations.31 These recommendations concern pilot programs so the focus of
the report is on policy matters.
The report is structured formally, containing headings. There are headings for each of
the recommendations that the minority disagree with under which they discuss their
views. The minority report contains quotes from experts, such as the Chief
Commissioner of Police and contains four footnote references.32 The expert testimony
(Hansard transcripts of oral testimony) and written submissions form the bulk of the
evidentiary basis for the report.
The language used is rational and dispassionate (e.g., ‘it is premature to reach that
conclusion on the basis of the evidence available to date’), complimentary (e.g., ‘some
of these approaches may have potential for greater use than at present’, and ‘the
minority members of the Committee wish the Broadmeadows pilot program well’) and
analytical (e.g., ‘the Committee is not in fact forming a clear conclusion of its own at
all, but rather it is leaving the outcome to a future assessment by others’).33
Political category
Minority reports in the ‘political’ category seek to further a political agenda that may
be unrelated, or only tangentially related, to the terms of reference of the inquiry. The
minority report of the Electoral Matters Committee (ELC) Inquiry into the provisions of
the Electoral Act 2002 (Vic) relating to misleading or deceptive political advertising
(2010) has been categorised as a political report using the taxonomy.34 The report’s
30
This minority report was authored by three members of the Committee: Robert Clark MLA, Jan Kronberg MLC and
Edward O’Donohue MLC. Note that the minority report page numbering begins from 1 after page 422 of the LRC
report and the numbering does not continue from the main report.
31
Law Reform Committee, Inquiry into Alternative Dispute Resolution and Restorative Justice: Minority Report, pp.
3-5 (hereafter ADR MR).
32
ADR MR, p. 4.
33
ADR MR, pp. 2, 4, and 6.
34
Electoral Matters Committee, Inquiry into the provisions of the Electoral Act 2002 (Vic) relating to misleading or
deceptive political advertising: Minority Report, Melbourne, Victoria, Parliament of Victoria, 2010 (hereafter EMC
AUSTRALASIAN PARLIAMENTARY REVIEW77
objective is to criticise the position taken by the Victorian state Government (at the
time led by the ALP) during the inquiry, particularly the evidence given to the
Committee by the ALP’s state secretary. It is a short report (less than 1.5 pages) and
most of it consists of un-contextualised quotes from submissions and transcripts of
public hearings.
The language of the report is antagonistic and without support for the claims (e.g. ‘we
regard the view of Stephen Newnham as being unacceptable’35) and critical (‘the
position adopted by the ALP could be categorised as at best tending to confuse, and at
worst, in the words of a campaign worker for Les Tentyman “a debasement of the
political system”’36). Further, there is evidence quoted, but it is not well connected to
the claims of the authors of the report. The overall position of the authors remains
unsubstantiated.
Malpractice/malfeasance category
Malpractice or malfeasance minority reports deal with failures of committee processes
or performance and/or actions that frustrate the work or investigations of the
committee and are often focused on government entities. The minority report on the
LRC’s Inquiry into arrangements for security and security information gathering for
state government construction projects (2010) (LRC 2010)37 raises concerns about
malpractice/malfeasance and has been placed into this category using the taxonomy.
The report raised four major concerns:
(1) that the inquiry was ‘shut down’
(2) that there was a report completed by the Commissioner for Law Enforcement and
Data Security that was not made available to the Committee by the Government
MR). The minority report was authored by three members of the Committee: Philip Davis, Michael O’Brien and
Murray Thompson. The page numbering continues from the main report.
35
EMC MR, p. 170.
36
EMC MR, p. 171.
37
Law Reform Committee, Inquiry into arrangements for security information and security information gathering
for state government construction projects: Minority Report, Melbourne, Victoria, Parliament of Victoria, 2010
(hereafter LRC MR). This minority report was authored by three members of the Committee: Robert Clark MLA, Jan
Kronberg MLC and Heidi Victoria MP. Note that the minority report page numbering begins from 1 after page 4 of
the LRC report and the numbering does not continue from the main report.
VOL 36 NO 1 AUTUMN/WINTER 202178
(3) that the majority of the Committee did not hold any public hearings, and
(4) that the majority of the Committee did not make any submissions to the inquiry
public.38
The structure of the report is formal. It contains headings and has a logical flow. The
language used is critical and prosecutorial (e.g. ‘the majority not only refused’ and ‘is
insulting to those persons who put time and effort into preparing submissions’),
conspiratorial (e.g. ‘there are strong grounds to conclude that the government has
sought to conceal and prevent public scrutiny’ and ‘[t]erminating MOUs and avoiding
future MOUs will be of little benefit if it results in Victoria Police conversely feeling
unable to pass on vital information’) and accusatorial - the word ‘gag’ is used
throughout the report in relation to how the minority feel they are being treated by
the majority of the Committee e.g. ‘[t]he majority’s gag on us means we are prohibited’
and ‘the consequent gagging of the minority members of the Committee is
unprecedented’.39 There is limited evidentiary material relied upon, including
references to a report by the Commissioner for Law Enforcement and Data Security.40
However, most of the minority report is based on the opinions of its authors.
Evidential category
Evidential minority reports are focused on dealing with material which has, according
to their authors, been excluded, misconstrued, misinterpreted or ignored. A good
illustration of a report falling into the evidential category under the taxonomy is the
minority report of the Education and Training Committee’s (ETC) Inquiry into the
Approaches to Homework in Victorian Schools (2014).41 It is a short report (two pages)
that focuses on the perceived lack of attention given by the main report to evidence
relating to one particular matter: ‘the removal of certain forms of financial assistance
38
EMC MR, p. 1.
39
EMC MR, p. 1, 2, 5, 6 and 7.
40
See e.g., EMC MR, p. 4
41
Education and Training Committee, Inquiry into the Approaches to Homework in Victorian Schools: Minority
Report, Melbourne, Victoria, Parliament of Victoria, 2014 (hereafter ETC MR). Accessed at:
https://www.parliament.vic.gov.au/images/stories/committees/etc/Homework_Inquiry/Homework_Inquiry_final
_report.pdf. This minority report was authored by two members of the Committee: Colin Brooks MP and Nazih
Elasmar MLC. The page numbering continues from the main report.
AUSTRALASIAN PARLIAMENTARY REVIEW79
from disadvantaged families’.42 The report seeks to ‘supplement the majority report
rather than to replace it or to provide an alternative point of view’43 and goes on to
make an additional recommendation calling for an assessment of the impact of
removing particular payments to low-income families.44
The report is informal and does not provide any quotes from Hansard. It refers to
evidence from ‘a student who gave evidence to the committee’,45 without quoting
what that student said in their submission or oral testimony. It instead refers to the
particular concerns of the report’s authors explicitly.
The language used in the report is accusatorial and conspiratorial. For example, it
refers to a particular bonus being ‘abolished by the Napthine Government in 2013’ and
refers to ‘the Federal Government’s compounding decision to cease’ another bonus
payment (emphasis added) and adds that ‘the Government has removed the very
financial assistance that is designed to help them do this’.46 I t also refers to the ‘very
real risk of increasing student exclusion and disengagement’ as a result of these
reforms,47 without providing any evidence about how or why that might occur—in
particular, without reference to evidence provided to the Committee during the
inquiry.
DISCUSSION AND CONCLUSION
Minority reports are an important and enduring characteristic of JICs. They play an
important role that can be summarised as exercising a normative influence, generating
reaction from government or from civil society, providing a canary or sentinel function,
dealing with risks arising from the over-representation of a political party on
committees or abuses of process, and providing a means of capturing a plurality of
different or underrepresented views. In Victoria, minority reports in the period 2006-
2018 saw a consistent reduction in number over time occurring at the same time as a
42
ETC MR, p. 106.
43
ETC MR, p. 106.
44
ETC MR, p. 107.
45
ETC MR, p. 106.
46
ETC MR, p. 107.
47
ETC MR, p. 107.
VOL 36 NO 1 AUTUMN/WINTER 202180
reduction in the number of committees and inquiries undertaken. Taxonomically, the
policy focused minority report predominated with few political minority reports across
the 2006-2018 period, a time period during which evidential minority reports have also
declined to zero. Importantly, minority reports when made are almost always focused
on ‘real’ or ‘valid’ motivations: policy debate, evidence, and abuse of process or power.
Interestingly, and unexpectedly, our analysis shows that they are rarely used as an
alternative forum to attack political opponents.
The categorisation of minority reports using the taxonomy demonstrates that minority
reports serve different functions and reveals that dissent within parliamentary
committees is nuanced. Therefore the treatment of the different reports needs to be
correspondingly nuanced. However, current accepted practice is not to respond to
minority reports when responding to main reports by Committees. The detailed
analysis of minority reports undertaken in this article, combined with the classification
of minority reports into different categories, reveals that closer attention to minority
reports could be considered in certain instances. It also reveals that minority reports
could contribute to policy development on the one hand, and have implications for
future inquiries, on the other. The question of how that might occur is a question for
future research.
Of the four categories of minority reports identified using the taxonomy, the authors
consider that only the political category of reports do not contain content that is
pertinent to the subject-matter of the inquiry. Future research could focus on whether
action is required in response to the other three categories, albeit with some
differences in approach. In relation to minority reports that contribute to policy
debate, which often contain recommendations, future research should consider
whether these could be responded to when the legislatively-mandated response to the
main report is provided. These reports contain rational analysis that can inform policy
development—particularly when considered alongside the main report. Similarly,
future research could be undertaken for minority reports that draw attention to issues
of evidence in the main report. These reports contain concerns that could have an
impact on how the content and recommendations of the main report are responded
to.
Finally, reports that contain claims of committee malpractice could be directly referred
to an appropriate committee of the Parliament, depending on their nature. This should
AUSTRALASIAN PARLIAMENTARY REVIEW81 likely be the Procedures/Standing orders Committee48 or in some circumstances, the Privileges Committee of either the Victorian lower and upper house.49 These committees should undertake reviews of minority reports raising malpractice/malfeasance claims, and determine what action needs to be taken, or what reforms should be introduced. The taxonomic classification of minority reports provides a clear path towards a differential response to the categories of minority report. It provides researchers and those involved within the Victorian parliamentary system with a way of understanding and categorising minority reports. Excluding political category reports, researchers should explore whether further attention should be paid to the other three types (policy focused, malpractice/malfeasance and evidential). The categorisation of minority reports also demonstrates that consensus-driven committees may mask problems with committee processes (concerning malfeasance/malpractice and evidence) that could lead to missed opportunities for refinement of the policy proposals put forward in the main report. This is not to suggest that widespread dissent is desirable. In any case, the empirical data suggests that this is unlikely. The Victorian data suggests that JICs have generally experienced consistent reduction in the number of minority reports, representing a decrease in committee dissent: minority reports are written by multiple committee members, are heavily skewed towards policy debate and evidentiary matters, and are rarely focused on political point scoring. However, if the trend was to change—particularly if there was an increase in malpractice/malfeasance or political reports—then that kind of dissent may be a harbinger of an ill-functioning committee system and in turn may reflect broader issues within Parliament and the democratic system and culture. That broad point is likely to be the case in most Westminster Parliaments, given that consensus is considered integral to the functioning of these committee systems. This is a situation that can be more easily identified by having a taxonomy to classify the various types of minority 48 This Committee is established ‘to consider any matter regarding the practices and procedures of the House’: Committees, ‘Procedure’. Parliament of Victoria, n.d. Accessed at: www.parliament.vic.gov.au/procedure- committee. 49 Committees, Legislative Council Committees, ‘Privileges’. Parliament of Victoria, 13 July 2018. Accessed at: www.parliament.vic.gov.au/lc-privileges; Committees, Legislative Assembly Committees, ‘Privileges’. Parliament of Victoria, n.d. Accessed at: https://www.parliament.vic.gov.au/la-privileges. VOL 36 NO 1 AUTUMN/WINTER 2021
82
reports. That is, the taxonomy could be used to measure the operational health and
outcomes of the committee system.
If the current trend in JICs continues, minority reports will not unduly disrupt the
consensus norm. Indeed, if the trend between 2006-2018 continues, minority reports
may become rare examples of parliamentary dissent. The reasons for this decline are
unclear. They may relate to political drivers, approaches to dissent within
parliamentary committees, the purported usefulness of minority reports and their
impact on policy debates, or lack thereof. These factors are worthy of future analysis
and research. Minority reports represent an important institutional pressure release
valve, can act as measure of performance and democratic outcomes of Parliament and,
when properly classified, could be appropriately responded to.
AUSTRALASIAN PARLIAMENTARY REVIEW83
Appendix A: Reports by Joint Committees (organised chronologically) 2008 to 2017
with minority report classification using the taxonomy
Tabling date Committee Inquiry Classification of
minority report
May 200950 Law Reform Inquiry into Policy focused
Committee (57th Alternative Dispute
Parliament) Resolution and
Restorative Justice
June 2009 Environment and Inquiry into Two minority reports;
Natural Resources Melbourne’s Future both policy focused
Water Supply
November 2009 Outer Inquiry into the Policy focused
Suburban/Interface Impact of the State
Services and Government’s
Development Decision to Change
the Urban Growth
Boundary
November 2009 Rural and Regional Inquiry into Evidential
Regional Centres of
the Future
November 2009 Law Reform Review of The Evidential
Committee (57th Members of
Parliament) Parliament
(Register of
Interests) Act
197851
December 2009 Family and Inquiry into Policy focused
Community Supported
Development Accommodation in
Victoria for
Victorians with a
50
The minority report is dated 27 April 2009. The majority report was tabled in May 2009.
51
The minority report is dated 4 October 2010. The majority report was tabled in December 2009.
VOL 36 NO 1 AUTUMN/WINTER 202184
Disability and/or
Mental Illness
February 2010 Environment and Inquiry into the Policy focused
Natural Resources Approvals Process
for Renewable
Energy Projects in
Victoria
February 2010 Electoral Matters Political
Inquiry into the
Committee provisions of the
Electoral Act 2002
(Vic) relating to
misleading or
deceptive political
advertising
May 2010 Road Safety Inquiry into Malpractice/.
Committee Pedestrian Safety in Malfeasance
Car Parks
October 2010 Rural and Regional Inquiry into the Policy focused
Extent and Nature
of Disadvantage
and Inequity in
Rural and Regional
Victoria
October 2010 Law Reform Inquiry into Policy focused
Committee (57th arrangements for
Parliament) security and
security
information
gathering for state
government
construction
projects
AUSTRALASIAN PARLIAMENTARY REVIEW85
12 December 201252 Outer Inquiry into Malpractice/
Suburban/Interface Liveability Options Malfeasance
Services and in Outer Suburban
Development Melbourne
March 2013 Law Reform Inquiry into Access Policy focused
Committee (57th to and Interaction
Parliament) with the Justice
System by People
with an Intellectual
Disability and their
Families and Carers
June 2013 Outer Inquiry on Growing Malpractice/
Suburban/Interface the Suburbs: Malfeasance
Services and Infrastructure and
Development Business
Development in
Outer Suburban
Melbourne
March 2014 Electoral Matters Inquiry into the Two minority reports;
Committee future of Victoria’s both policy focused
electoral
administration
August 2014 Education and Inquiry into the Evidential
training approaches to
homework in
Victorian schools
September 2014 Law Reform, Drugs Inquiry into the Policy focused
and Crime Supply and use of
Prevention Methamphetamine
s, Particularly Ice,
in Victoria
May 2016 Electoral Matters Inquiry into the Policy focused
Committee conduct of the 2014
52
The minority report is dated 6 December 2012. The majority report was tabled 12 December 2012.
VOL 36 NO 1 AUTUMN/WINTER 202186
Victorian state
election
May 2016 Environment, Inquiry into the CFA Political
Natural Resources Training College at
and Regional Fiskville
Development
June 2016 Economic, Inquiry into Malpractice/
Education, Jobs and portability of long Malfeasance
Skills service leave
entitlements
March 2017 Law Reform, Road Inquiry into Policy focused
and Community lowering the
Safety probationary
driving age in
Victoria to
seventeen
March 2018 Law Reform, Road Inquiry into Drug Policy focused
and Community Law Reform
Safety
AUSTRALASIAN PARLIAMENTARY REVIEWYou can also read
